Supreme Court Justice Anthony Kennedy. (Photo: Stephen Crowley / The New York Times)Many people believe that Justice Antonin Scalia and the other conservative Supreme Court justices are "strict constructionists" because they interpret the law as Congress intended. But nothing could be farther from the truth. In fact, as this Judicial Amendment series has shown, the conservative justices regularly ignore not only the language of the statute but also congressional policy statements and the statute's legislative history when interpreting a statute. Instead, they give themselves unfettered discretion to decide cases according to their whims and personal preferences.

The judicial tradition of letting law violators off the hook - as long as they are employers

In 2002, the Supreme Court agreed that Hoffman Plastics had violated the National Labor Relations Act (NLRA) by firing employee José Castro for his union activities. Although Hoffman Plastics is most often viewed as a case that created an injury unique to undocumented immigrants, it is actually part of the long tradition of using judicial amendments to weaken unions and labor laws.

The normal remedy under the NLRA for an illegal firing is backpay, an offer of reinstatement to the employee's former job and posting a notice of employees' NLRA rights at the jobsite. The issue in Hoffman was whether Castro was entitled to a back pay remedy for having been fired for supporting a union. (Normally, reinstatement to his former job also would be ordered, but Castro was not entitled to reinstatement because he could not legally work in the US.)

Courts, including the Supreme Court, are supposed to follow rules that help them make reasoned decisions and avoid making arbitrary decisions. Court decisions are supposed to be based on the evidence in the record of the trial court and to promote the policies of the law that are at issue.

In Hoffman, evidence in the record and the NLRA's policies supported ordering backpay. The National Labor Relations Board (NLRB) and the Immigration and Naturalization Service (INS) provided evidence that ordering the employer to pay back pay to Castro was needed to ensure that employers would comply with the law and that denying the discharged employee back pay would undermine the enforcement of immigration and labor laws. In addition, the NLRA's policies say that remedies must promote the act, such as protecting employee rights to join and support a union.

However, despite the NLRA policies and the evidence given by the NLRB and INS, the Supreme Court majority dismissed the findings of these two expert federal agencies charged with enforcing the NLRA and immigration law and held that an employer that illegally fired an undocumented worker would owe the employee no back pay.

Disorder in the Court

The transcript of the oral argument in Hoffman shows the conservative justices expressing disrespect for the rule of law and for the fate of all those who would be affected by the justices' decision. Scalia, for example, said José Castro was not entitled to back pay because he was unable to mitigate the amount of back pay his employer owed him because it was illegal for him to work in the United States.

Scalia argued that the employee's violation of the immigration laws was equivalent to or greater than the employer's original violation. As a result, Scalia said, an employee's inability to mitigate the amount of damages his employer owes him means that an injured employee must be prevented from taking advantage of his employer. Otherwise, Scalia argued, "if [the discharged employee is] smart he'd say, how can I mitigate? It's unlawful for me to get another job. … I can just sit home and eat chocolates and get my back pay."

Scalia and the other justices who joined the Hoffman Plastics majority decision judicially amended the NLRA by putting the employee whose rights had been violated on trial and letting the law-breaking employer off. As Scalia put it:

In most back pay situations where the employer has committed an unfair labor practice and dismisses an employee improperly, the amount he's going to be stuck with for back pay is limited by the fact that the person unlawfully fired has to mitigate. He has to find another job. If he could have gotten another job easily and doesn't do so, the employer doesn't have to pay. Now, how is this unlawful alien supposed to mitigate? … Mitigation is quite impossible, isn't it?

…

[W]hen both the employer and the employee are violating the law … you're asking the courts to give their benediction to this stark violation of United States law by awarding money that hasn't even been worked for. I - it's just something courts don't do.

Of course, these conjectures are pure fantasy with no basis in law.

In reality, it is ludicrous to imagine that an employee who loses his low-paying job will be scheming ways to twist the law to his own ends. Instead, the employee will be searching for new work to keep body and soul together.

Back pay for an employee who has been fired illegally is a standard remedy under a wide range of state and federal laws. That back-pay remedy is always money the wronged employee has not worked for, and courts regularly order employers to pay back pay to those employees. Is it possible, then, that a jurist of Scalia's experience could genuinely believe that back pay is a flawed remedy because the money was not worked for? Or that the employer has no obligation to right the wrong it has committed? And the suggestion that an employee would sit home without working in hopes of a back pay remedy years down the road could come only from someone who has never lived paycheck to paycheck.

Justice Anthony Kennedy constructed a bizarre entrapment defense that meant the employer law violator was not at fault and also tried to shift blame for the violation from the employer who illegally fired Castro to the employee's union. Kennedy speculated that the union had allowed undocumented workers to participate in the organizing campaign as a ploy to get the employer to violate the NLRA by firing the employee-organizer. Kennedy said:

Well, when the Board makes its calculus and when the Government made its calculus, did it give any consideration to the fact that a union ought not as a matter of policy to use illegal aliens for organizing activity, or do you think the union can do that?

…

Is it consistent with the labor laws of the United States for the union to say it knowingly uses an alien for organizing activity?

…

Here, what you're saying is that a union can, I suppose even knowingly, use illegal aliens on the workforce to organize the employer, knowing that by doing that the alien will still be entitled to back pay. That seems to me completely missing from any calculus, from any equitable calculus in your brief. … I'm quite puzzled by it.

Justice Kennedy's entrapment theory is completely lacking in merit. There was no evidence that the union had plotted to entrap unwary employers. What should have been obvious was that the union and other employees were trying to organize a union. Persuading the employer to recognize the union required signing up as many employees as possible.

The workers' fear of sanctions for violating immigration laws likely would make them timid about organizing in the first place. If they dared to organize, firing them probably would defeat unionization and lead to no employer sanction. Organizing takes hard work and employees with courage and the ability to be a leader, while dealing with fired employees and violations of the NLRA just makes an organizer's job more difficult.

The bottom line is that nothing required the employer to fire the employees for joining the union. But, rather than abide by the law, the employer chose to violate the law. Because other employees also would be entitled to back pay, why would paying back pay to undocumented workers be any different?

Contempt for Law

The Hoffman Plastics majority decision to free a law violator of its legal obligations fits within the long history of judicial amendments to the NLRA. Remedies have been a major target of judicial amendments, because weakening or eliminating remedies weakens the law.

The judicial amendment the justices created in Hoffman Plastics built on judicial amendments from the 1939 and 1942 cases of Fansteel Metallurgical and Southern Steamship. In these cases, employers had violated the NLRA by illegally firing workers for their union activities. In both cases, the Supreme Court also held that the employer owed no back pay because its employees had violated state trespass laws by staging sit-down strikes.

The court majority focused on José Castro's citizenship status even though it was not relevant to the policies of the NLRA. And there were other laws that applied to violations of US immigration law. As a result, the conservative Supreme Court justices created a doctrine that violated Congress' command that remedies must promote the act's policies. Those policies include protecting employees' rights to form and join unions, to strike and to engage in mutual aid and support. The NLRA's policies also include encouraging the practice and procedure of collective bargaining while balancing bargaining power.

Hoffman relieves employers of their obligation to provide back pay or, indeed, any remedy to illegally fired workers who turn out not to be US citizens. By ignoring NLRA policies, the majority decision made it more attractive for employers to violate immigration laws by hiring workers suspected of not being in this country legally.

Ellen Dannin is Fannie Weiss distinguished faculty scholar and professor of law at Penn State Dickinson School of Law and author of "Taking Back the Workers' Law - How to Fight the Assault on Labor Rights."

Ann Hodges is professor of law at the University of Richmond where she teaches and writes in the areas of labor and employment law. Prior to joining the faculty, she practiced labor and employment law in Chicago and worked for the National Labor Relations Board as a field examiner.

Supreme Court Justice Anthony Kennedy. (Photo: Stephen Crowley / The New York Times)Many people believe that Justice Antonin Scalia and the other conservative Supreme Court justices are "strict constructionists" because they interpret the law as Congress intended. But nothing could be farther from the truth. In fact, as this Judicial Amendment series has shown, the conservative justices regularly ignore not only the language of the statute but also congressional policy statements and the statute's legislative history when interpreting a statute. Instead, they give themselves unfettered discretion to decide cases according to their whims and personal preferences.

The judicial tradition of letting law violators off the hook - as long as they are employers

In 2002, the Supreme Court agreed that Hoffman Plastics had violated the National Labor Relations Act (NLRA) by firing employee José Castro for his union activities. Although Hoffman Plastics is most often viewed as a case that created an injury unique to undocumented immigrants, it is actually part of the long tradition of using judicial amendments to weaken unions and labor laws.

The normal remedy under the NLRA for an illegal firing is backpay, an offer of reinstatement to the employee's former job and posting a notice of employees' NLRA rights at the jobsite. The issue in Hoffman was whether Castro was entitled to a back pay remedy for having been fired for supporting a union. (Normally, reinstatement to his former job also would be ordered, but Castro was not entitled to reinstatement because he could not legally work in the US.)

Courts, including the Supreme Court, are supposed to follow rules that help them make reasoned decisions and avoid making arbitrary decisions. Court decisions are supposed to be based on the evidence in the record of the trial court and to promote the policies of the law that are at issue.

In Hoffman, evidence in the record and the NLRA's policies supported ordering backpay. The National Labor Relations Board (NLRB) and the Immigration and Naturalization Service (INS) provided evidence that ordering the employer to pay back pay to Castro was needed to ensure that employers would comply with the law and that denying the discharged employee back pay would undermine the enforcement of immigration and labor laws. In addition, the NLRA's policies say that remedies must promote the act, such as protecting employee rights to join and support a union.

However, despite the NLRA policies and the evidence given by the NLRB and INS, the Supreme Court majority dismissed the findings of these two expert federal agencies charged with enforcing the NLRA and immigration law and held that an employer that illegally fired an undocumented worker would owe the employee no back pay.

Disorder in the Court

The transcript of the oral argument in Hoffman shows the conservative justices expressing disrespect for the rule of law and for the fate of all those who would be affected by the justices' decision. Scalia, for example, said José Castro was not entitled to back pay because he was unable to mitigate the amount of back pay his employer owed him because it was illegal for him to work in the United States.

Scalia argued that the employee's violation of the immigration laws was equivalent to or greater than the employer's original violation. As a result, Scalia said, an employee's inability to mitigate the amount of damages his employer owes him means that an injured employee must be prevented from taking advantage of his employer. Otherwise, Scalia argued, "if [the discharged employee is] smart he'd say, how can I mitigate? It's unlawful for me to get another job. … I can just sit home and eat chocolates and get my back pay."

Scalia and the other justices who joined the Hoffman Plastics majority decision judicially amended the NLRA by putting the employee whose rights had been violated on trial and letting the law-breaking employer off. As Scalia put it:

In most back pay situations where the employer has committed an unfair labor practice and dismisses an employee improperly, the amount he's going to be stuck with for back pay is limited by the fact that the person unlawfully fired has to mitigate. He has to find another job. If he could have gotten another job easily and doesn't do so, the employer doesn't have to pay. Now, how is this unlawful alien supposed to mitigate? … Mitigation is quite impossible, isn't it?

…

[W]hen both the employer and the employee are violating the law … you're asking the courts to give their benediction to this stark violation of United States law by awarding money that hasn't even been worked for. I - it's just something courts don't do.

Of course, these conjectures are pure fantasy with no basis in law.

In reality, it is ludicrous to imagine that an employee who loses his low-paying job will be scheming ways to twist the law to his own ends. Instead, the employee will be searching for new work to keep body and soul together.

Back pay for an employee who has been fired illegally is a standard remedy under a wide range of state and federal laws. That back-pay remedy is always money the wronged employee has not worked for, and courts regularly order employers to pay back pay to those employees. Is it possible, then, that a jurist of Scalia's experience could genuinely believe that back pay is a flawed remedy because the money was not worked for? Or that the employer has no obligation to right the wrong it has committed? And the suggestion that an employee would sit home without working in hopes of a back pay remedy years down the road could come only from someone who has never lived paycheck to paycheck.

Justice Anthony Kennedy constructed a bizarre entrapment defense that meant the employer law violator was not at fault and also tried to shift blame for the violation from the employer who illegally fired Castro to the employee's union. Kennedy speculated that the union had allowed undocumented workers to participate in the organizing campaign as a ploy to get the employer to violate the NLRA by firing the employee-organizer. Kennedy said:

Well, when the Board makes its calculus and when the Government made its calculus, did it give any consideration to the fact that a union ought not as a matter of policy to use illegal aliens for organizing activity, or do you think the union can do that?

…

Is it consistent with the labor laws of the United States for the union to say it knowingly uses an alien for organizing activity?

…

Here, what you're saying is that a union can, I suppose even knowingly, use illegal aliens on the workforce to organize the employer, knowing that by doing that the alien will still be entitled to back pay. That seems to me completely missing from any calculus, from any equitable calculus in your brief. … I'm quite puzzled by it.

Justice Kennedy's entrapment theory is completely lacking in merit. There was no evidence that the union had plotted to entrap unwary employers. What should have been obvious was that the union and other employees were trying to organize a union. Persuading the employer to recognize the union required signing up as many employees as possible.

The workers' fear of sanctions for violating immigration laws likely would make them timid about organizing in the first place. If they dared to organize, firing them probably would defeat unionization and lead to no employer sanction. Organizing takes hard work and employees with courage and the ability to be a leader, while dealing with fired employees and violations of the NLRA just makes an organizer's job more difficult.

The bottom line is that nothing required the employer to fire the employees for joining the union. But, rather than abide by the law, the employer chose to violate the law. Because other employees also would be entitled to back pay, why would paying back pay to undocumented workers be any different?

Contempt for Law

The Hoffman Plastics majority decision to free a law violator of its legal obligations fits within the long history of judicial amendments to the NLRA. Remedies have been a major target of judicial amendments, because weakening or eliminating remedies weakens the law.

The judicial amendment the justices created in Hoffman Plastics built on judicial amendments from the 1939 and 1942 cases of Fansteel Metallurgical and Southern Steamship. In these cases, employers had violated the NLRA by illegally firing workers for their union activities. In both cases, the Supreme Court also held that the employer owed no back pay because its employees had violated state trespass laws by staging sit-down strikes.

The court majority focused on José Castro's citizenship status even though it was not relevant to the policies of the NLRA. And there were other laws that applied to violations of US immigration law. As a result, the conservative Supreme Court justices created a doctrine that violated Congress' command that remedies must promote the act's policies. Those policies include protecting employees' rights to form and join unions, to strike and to engage in mutual aid and support. The NLRA's policies also include encouraging the practice and procedure of collective bargaining while balancing bargaining power.

Hoffman relieves employers of their obligation to provide back pay or, indeed, any remedy to illegally fired workers who turn out not to be US citizens. By ignoring NLRA policies, the majority decision made it more attractive for employers to violate immigration laws by hiring workers suspected of not being in this country legally.

Ellen Dannin is Fannie Weiss distinguished faculty scholar and professor of law at Penn State Dickinson School of Law and author of "Taking Back the Workers' Law - How to Fight the Assault on Labor Rights."

Ann Hodges is professor of law at the University of Richmond where she teaches and writes in the areas of labor and employment law. Prior to joining the faculty, she practiced labor and employment law in Chicago and worked for the National Labor Relations Board as a field examiner.